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One to Keep An Eye On: Fort Bend County v. Davis (U.S. Supreme Court)


As with many employment and labor law related cases (and bills) being litigated around the country, there are always a few that stand out.  This is one to keep an eye on.


Late last month, the United States Supreme Court heard oral arguments in Fort Bend County v. Davis, a case that centers on whether the requirement that employment discrimination claimants present their claims to the Equal Employment Opportunity Commission ("EEOC") before filing suit is a jurisdictional prerequisite or instead a claim processing rule.

In this case, Lois Davis sued Fort Bend County for religious discrimination despite the fact that she never filed a charge of religious discrimination with the EEOC before filing suit.  As readers might be aware, Title VII of the Civil Rights Act of 1964 requires claimants to exhaust claims of employment discrimination with the EEOC (including by filing a charge with the EEOC) prior to filing suit.  This exhaustion requirement ensures the EEOC has the ability to investigate a claim of discrimination, attempt conciliation with the employer, and even give the employer notice of the alleged discriminatory practice with the ability to cease that allegedly unlawful behavior.  However, there is a split among Circuits over whether a claimant's failure to exhaust discrimination claims precludes a court from hearing the matter.  The Fourth, Ninth, and Eleventh Circuits have held that the exhaustion requirement in Title VII is jurisdictional, thus courts lack subject matter jurisdiction over claims that were never presented to the EEOC.  (The Department of Justice subscribes to this line of reasoning as well.)  Eight Circuits disagree, characterizing the exhaustion requirement as a claim processing rule that is subject to waiver, forfeiture, or other equitable defenses.  (The EEOC subscribes to this line of reasoning as well.)

Notably, Fort Bend County waited five years before arguing that Davis had failed to properly file a charge of discrimination with the EEOC.  If the exhaustion requirement in Title VII is found to be a claim processing rule, Fort Bend's failure to exhaust argument would not be timely (as it came too late.)  On the other hand, if the exhaustion requirement is found to be jurisdictional, Fort Bend could properly proceed with this argument (as it would not be too late to argue Davis failed to comply with Title VII.)

At the oral arguments, counsel for Fort Bend County argued that the text and structure of Title VII indicated that the exhaustion remedy is jurisdictional.  That same section of Title VII further contains a grant of jurisdiction for federal courts to hear "actions brought under this subchapter."  Consequently, the argument was made that taken together, these paragraphs provided "text linking explicitly to the jurisdictional provision" as "part of an intricate scheme for statutory and judicial review."  Justice Ruth Bader Ginsburg appeared skeptical of this line of reasoning, pointing out that with the EEOC's limited power to resolve claims, it would be unusual to deem jurisdictional an agency process that can result only in conciliation (as opposed to adjudication.)  Counsel for Davis zeroed in on this line of reasoning, pointing out that unlike the EEOC's power over discrimination claims, the National Labor Relations Act allows agencies to actually adjudicate claims that are then reviewed by federal appeals courts.

As many legal scholars have noted, based upon how oral arguments played out, it is likely that the Supreme Court will rule in favor of Davis and find that Title VII's exhaustion requirement is a claim processing rule rather than a jurisdictional requirement.



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